Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the court. It is a parallel to the state judiciary. It ensures that disputes are resolved faster and helps the courts avoid the burden of cases that make it so difficult to deliver justice in a timely manner. Legal protection is not provided by regular courts, but at the discretion of the parties by bodies or persons of their absolute choice. The arbitral tribunal of private judges issues a binding decision at the end of the proceedings, which, although producing inviolability of final judgment and enforceability, is subject to annulment before the ordinary courts, which have the power to review the legality of those decisions. Without prejudice to the rules ensuring fair trial as well as those to which the parties may otherwise agree, the arbitrators shall not be bound by the rules of procedural law and shall have the power to determine, at their discretion, place, time and procedure of arbitration. Provided that the arbitration agreement has be en empowered to do so, the arbitrators may, without being bound by non-public law rules of substantive law. The arbitrators can require the parties to pay a fee for their services.
There are two kinds of Arbitration. The first one is Institutional Arbitration and the other one is Ad Hoc Arbitration. An institutional arbitration is one in which a specialised institution intervenes and takes on the role of administering the arbitration process. Each institution has its own set of rules which provide a framework for the arbitration, and its own form of administration to assist in the process. On the contrary, an ad hoc arbitration is one which is not administered by an institution. The parties will therefore have to determine all aspects of the arbitration themselves – for example, the number of arbitrators, appointing those arbitrators, the applicable law and the procedure for conducting the arbitration.
The international business community has developed international arbitration service centers through the establishment of arbitration centers. These centers in turn draw up an Arbitration Regulation and organize international arbitrations thereunder. Some of the most important arbitration centers are the ICC (International Chamber of Commerce) as a center for resolving international commercial disputes, ICSID (I nternational Centre for Settlement of Investment Disputes) as a center for resolving investment disputes between states and foreign investors, AAA (American Association of Referees) etc.
In Greece, the Code of Civil Procedure applies to internal arbitration, while Act 2735/1999, which adopted the UNCITRAL Model Law, applies to international arbitration.
Mediation, in accordance with the Greek Law, is the facilitation of a negotiated agreement by a neutral third party who has no decision-making power. Mediation is now recognised as one of the quickest and most cost-effective ways of resolving a dispute and is the most common form of ADR (Alternative Dispute Resolution).C ompared to litigation, mediation can produce superior and lasting solutions for much less cost and time, money and emotional stress.
Mediation is subject to all private disputes in which the parties are entitled to dispose of the subject-matter of the dispute. So, Mediation is being used to resolve disputes in business, workplace, health, family, international complex and cases spending levels in the legal system. Usually, mediations involve the mediator, the parties and the parties’ legal representative. Τhe Greek Government have passed the legislation on “Mediation in civil & commercial disputes” (Act 3898/2010).
The voluntary nature of the process is one of the key advantages of Μediation. The parties choose to come to Μediation and can also choose whether they wish to leave. The process is conducted through confidentiality talks and negotiations and with the help of the mediator, who must be specialized and impartial. The flexibility and immediacy of the mediation nature allow the parties to focus on the substance of the dispute. Particular attention is paid to the personality, needs and interests of the parties. The appeal of mediation for many businesses is to protect their image and reputation, as mediation is confidential and avoids public litigation, which may prove harmful to the business.
The choice of mediator for a particular case is important. The style of the mediator, his knowledge and his approach to certain issues can greatly help promote the process.
Innovation in the Greek legal order came about by Act 4640/2019, according to which, in civil and commercial disputes of a national or cross-border nature, the lawyer is obliged to inform his client about the possibility of appealing and resolving the dispute by the Mediation process, provided that the parties have the power to dispose of the subject matter of the dispute. Article 6 (1) of the same Act lists cases that are compulsory INITIAL MEDIATION CONFERENCE, especially:
(a) Family disputes, with the exception of cases a), b) and c) of paragraph 1, as well as those of paragraph 2 of Article 592 of the Code of Civil Procedure,
(b) Disputes adjudicated in the ordinary course of law which fall within the material jurisdiction of the Single-Member Court of First Instance if the value of the subject-matter of the case exceeds thirty thousand (30,000) euros and the Multi Member Court of First Instance, in accordance with the provisions of the Code of Civil Procedure,
(c) Disputes for which a written agreement of the parties provides for a mediation clause, which is also in force
Provided, of course, that the parties have the power to dispose of the subject-matter of the dispute. Excluded from the mandatory initial mediation session referred to in paragraph 1 are disputes in which a party is the State, Local Government Agency or Public Entity.